In a key decision handed down by the Court of Appeal, it has been made clear that Local Planning Authorities cannot use section 73 of the Town and Country Planning Act 1990 to change the description of a development granted planning permission
Shruti Trivedi, partner and head of planning at Roythornes Solicitors, discusses what this new information on section 73 of the Town and Country Planning Act potentially means for both developers and planning authorities going forward.
The ruling comes after the second-highest court in England and Wales found that a planning inspector in Wales was not within her powers to allow an appeal on a scheme where Section 73 of the Town and Country Planning Act amended the height of two wind turbines from 100 metres to 125 metres.
A Section 73 application enables those seeking planning permission the opportunity to amend specific conditions and for new planning consent with the amended conditions to be granted without altering anything else but the condition(s) in question. The section is mainly intended to allow flexibility in the planning system by allowing conditions to a planning permission to be changed without risking the entirety of the consented scheme.
It’s hoped that judge Lord Justice Lewison’s ruling in the case of John Leslie Finney v Welsh Ministers, Carmarthenshire County Council and Energiekontor UK Limited should offer both developers and local planning authorities some clarity as to exactly how far Section 73 of the Town and Country Planning Act powers can, or cannot be, stretched after some recent years of legal uncertainty due to conflicting decisions.
What has changed?
Arguably not much as Section 73 has long been in existence and allowing alterations to conditions including those concerning submitted plans to be changed. It has been established that Section 73 cannot be used to make fundamental alterations to the description of the scheme.
However, the first decision in the Finney case by the High Court in 2018 did seem to create a grey area by suggesting that the change to the description of development was allowable. Prior to that, there was also the implied judgment in the 2017 case of R (Wet Finishing Works Limited) v Taunton Deane BC, where a Section 73 application sought to increase the permitted number of dwellings from 84 to 90, which also muddied the waters.
This new ruling helpfully deems that Local Planning Authorities may only use Section 73 powers to amend, remove or add to the conditions attached to that permission. In essence, the ruling clarifies the discrepancies arising from both the 2017 and 2018 judgements. To vary the description of the development remains outside the remit of Section 73 and it is consolidated that fundamental alterations are not allowable through Section 73 of the Town and Country Planning Act.
For example, if a housing developer states a fixed number of dwellings within the description of its plans, and then wishes to change that number in the description, it cannot legally do so through Section 73 application.
What will this mean for developers?
Developers will need to ensure that they are clear on what their development and its parameters are. If a change is minor and “not material”, Section 96A of the Act allows non-material amendments but anything of substance will require a potential new application. As ever, the question of what is fundamental, or material was and remains a case of fact and degree on specific circumstances.
This ruling should be very useful when advising developers or planning authorities as to the legitimate scope of what a Section 73 application can do and cannot do. Developers may think that by changing a condition to effectively “open the gate” to Section 73 and then using that application to change the description of what they originally applied for is a clever tactic, but the Court of Appeal makes it clear that this will no longer “wash” with the planning authorities and the courts. This case seems to have certainly put pay to any such circumvention of the Section 73 process; any such action would be construed as “a misuse of section 73”, as LJ Lewison put it.
Partner and head of planning